Citing changes in DNA evidence analysis, DA agrees to new trial for man serving life term

A San Diego man serving a sentence of 40 years to life in prison for a 2006 murder will get a new trial, after the San Diego District Attorney’s Office determined the analysis of some DNA evidence used at his trial was no longer reliable.

The decision, outlined in court papers this week, means the defendant Donnell Fulcher, 44, will get a third trial over the shotgun shooting death of Roberto Rodriguez on Sept. 10, 2006. The first jury deadlocked and could not reach a verdict, but a second jury convicted him in April 2009 of second-degree murder and other charges.

In court papers prosecutors said they still believe Fulcher is guilty and intend to retry the case. But they said he was entitled to a new trial because a change in how certain kinds of DNA evidence — so-called mixture DNA that contains genetic material from more than one person — is interpreted makes some of the evidence used against him less convincing.

The move marks the first time the District Attorney’s Office’s Conviction Review Unit , which was set up in March 2016, has re-examined a case and determined the conviction should be set aside.

Knut Johnson, the lawyer who represented Fulcher at his trials, welcomed the decision to give up the conviction, which is not often done by prosecutors. Johnson has pressed for a review of the case since 2016, when he learned of the change in mixture DNA standards from reading a story in The San Diego Union-Tribune.

“The right result happened here,” he said. “It was unfair to let this conviction stand.”

Deputy District Attorney Brent Neck, who heads the review unit, said while prosecutors are still confident Fulcher is guilty, a lengthy internal review concluded a new trial was warranted.

“The decision to undo a murder conviction is not a decision we take lightly,” he said. “It takes a long time to look at it. But after a thorough review, we thought the right thing to do was to give him a new trial.”

The Fulcher case review centered on three pieces of evidence — a glove and two shotgun shells found at the scene of the killing. Each contained a DNA mixture from two people.

Under DNA interpretation guidelines at the time, analysts determined that Fulcher’s DNA was part of the glove mixture and calculated the probability that an unrelated person would have the same DNA as 1 in 260 billion.

The tests did not show Fulcher’s DNA as part of the mixture sample found on the shotgun shells. But his girlfriend was included as a possible source, with a probability match of 1 in 180,000 for one shell and 1 in 4,500 for the second.

The girlfriend lived with Fulcher sometimes and cleaned his apartment, and testified that she had seen a bag of ammunition in a closet and touched it, court records show. Prosecutors argued that because she was a contributor to the DNA and was in Fulcher’s home often, the shells were his, Johnson said.

But about a year after Fulcher was convicted and sentenced, the nation’s leading forensic science group issued new guidelines on how to interpret the kind of mixed DNA samples used in the case. In general, the new guidelines are more conservative — they now lower the probability of a random match, and dictate that some mixtures be deemed inconclusive.

While the San Diego Police Department lab adopted the new guidelines in 2011, the change was not known in the defense community until 2016. At that time, Johnson asked the Distric Attorney’s Office to review his client’s case and Neck agreed to recalculate the evidence — using the new guidelines.

The glove analysis dropped from 1 in 260 billion to 1 in 4.3 billion — still a compelling number. But the analysis of the shotgun shells changed significantly, to “inconclusive.”

Prosecutors then sought to retest the glove and shells. But there was not enough DNA left on the shells to retest. As for the glove, the lab said the evidence was now “uninterpretable” in part because of the very low level of DNA that was there.

Johnson said the DNA evidence interpretation was a key part of both Fulcher’s trials. There was other evidence, including a witness who at one point identified another person as the possible shooter.

“They really argued the hell out of the DNA to the jury,” he said. In a court filing, Neck said that District Attorney Summer Stephan determined a new trial was warranted and it was “the fair and right thing to do.”

“The People continue to believe (Fulcher) is responsible for this cold-blooded attack,” Neck wrote. “However (Fulcher) is entitled to have his jury consider all of the new evidence outlined above.”

Rodriguez was shot while sitting in a car with his pregnant fiancee outside a restaurant on Newton Avenue in Barrio Logan. At trial, prosecutors theorized that Fulcher was angry because eight days earlier his own car had been stolen from the same area — and the shooting was a case of “misplaced revenge.”

The fiancee and her baby survived.

Special units dedicated to reviewing claims of innocence and convictions have become more prevalent in prosecution circles over the past decade as part of the larger movement to reform the criminal justice system. But they are still rare.

A report by the National Registry of Exonerations earlier this year said there are some 33 conviction review units set up around the country. That’s more than double the number in 2011, but still just a fraction of the approximately 2,300 prosecution offices nationally.

The report concluded such units are “a positive development, but they are not a panacea.”

Fulcher is serving his sentence in Soledad State Prison and is expected to be brought to San Diego sometime in the coming weeks.